Striking out? Should we ban doctors strikes?

by Dominic Wilkinson @Neonatalethics

Consultant neonatologist, Director of Medical Ethics

 

Next week, junior doctors in England and Wales will be taking part in industrial action for 15 hours over two successive days. This is the latest in a series of stoppages since late last year, and relates to a dispute over proposed changes to junior doctors’ contracts and pay. It is the first strike, (and the first in the UK since the establishment of the NHS), to include all medical care, including emergency treatment. Junior doctors will not be at work in accident and emergency departments, intensive care units, operating theatres and hospital wards between 8 and 5 on both of those days.

There are a series of questions raised by these strikes. There are disputed claims about the impact of contract changes on take home pay, on working conditions for doctors and on patient care. There are different views about the actual impact of next week’s strike on patients, on public opinion, or on negotiations about the new contract. But for the purposes of this article, I am going set those specific questions aside, and focus on a more general question. Should doctor strikes (particularly emergency care strikes) be legal, should they be allowed?

Consistency

Doctors are currently legally permitted to strike in the UK.[1] But other individuals who work in key public services are not allowed to strike. So, for example, members of the armed forces cannot strike. Police officers cannot strike. Prison officers can strike in Scotland, but not in England. Many countries, both in Europe and elsewhere, limit or prevent some public employees from striking. Is there a reason for banning strikes by police or soldiers, but for permitting strikes by health professionals?

The ethical justification for restricting or removing the right to strike for police or armed forces is on the basis of the threat to public order or wellbeing or national security in the event of a strike. The potential harm to the wider community is thought to outweigh the harm to individual freedom in restricting the right to strike. The European Convention on Human Rights enshrines the right to freedom of assembly and association (including trade union membership), however, it potentially leaves open the possibility of restrictions on these rights “in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.”

If the reason to prohibit police strikes is the potential harm to the wider community, that might also apply to doctor strikes. We might expect that such strikes (or at least some types of doctor strikes) could lead to delays in diagnosis and treatment of serious illness, and might even lead to higher death rates for patients. In fact, the evidence for such harms is limited. A review, published in 2008, found, paradoxically, an apparent reduction in hospital death rates during 5 medical strikes around the world between 1976 and 2003. This might reflect the reorganization of services that occurs during strikes, with cancellation of elective surgery and more senior staff undertaking patient care. However, we should be cautious about extrapolating from that evidence to all doctors’ strikes. Some have suggested that reduction in deaths in hospital during strikes could be balanced against an increase in deaths in the community (sick patients might delay going to hospital). Moreover, in all of those reported strikes emergency care was still available. A 20-day full strike by doctors in a South African province in 2010 was associated with an apparent two to threefold increase in death rates. The wider impacts on patients from doctors’ strikes haven’t been measured. It is inevitable, though, that they disrupt and delay medical care for some patients, for example through cancellation of elective surgical procedures and outpatient appointments. The evidence from police strikes is also limited, but appears more dramatic. For example, the 1976 police strike in Finland was accompanied by a sudden increase in fights in public places in Helsinki as well as in hospital admissions for assault, though there was not overall a significant increase in public disorder or crime.

Consistency means that we should treat like cases alike. If there is no morally relevant difference between the harms caused by police or by doctors withdrawing their professional services, then we should treat them similarly. That in itself doesn’t tell us which way to turn. It might be, for example, that both police officers and health professionals should be allowed to strike. Or it may be that neither should be permitted to strike.

One moderate position would be to suggest that both police officers and health professionals should be permitted to undertake some forms of industrial action – so long as harms to the wider community are minimized. For example, this might permit the sorts of non-emergency care strike that junior doctors have conducted in the UK in recent months. It would support police officers working-to-rule, or declining to police sporting events. It would, however, potentially prohibit an emergency care strike by essential medical professionals, as well as making unlawful a strike by front-line police officers.

However, there is an important ethical corollary to restrictions on the right to strike. If some workers are prohibited from striking because they work in vital services, they are then put in a vulnerable position when it comes to negotiations about working conditions and pay. Without the same options as other workers they may be unable to resist undesirable changes to their employment. That means that their employers (the government) have an ethical obligation to seek and to reach agreement with workers on work conditions. They should not be legally permitted to impose changes to the work or pay of vital employees such as soldiers or health professionals.

Doctors shouldn’t be permitted to withdraw emergency medical care – in just the same way as police officers and armed forces personnel are not permitted to withdraw their vital services to the community. However, neither should the government be allowed to unilaterally impose its new contract.

 

[1] Though some have suggested that doctors who choose to strike might be subject to sanction from the General Medical Council if patients come to harm as a result.

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5 Responses to Striking out? Should we ban doctors strikes?

  • Adam says:

    “Next week, junior doctors in England and Wales will be taking part in industrial action for 15 hours over two successive days.”

    Are doctors in Wales striking? Why?

  • Dominic Wilkinson says:

    thanks for the helpful pointer Adam. corrected.

  • Julian Savulescu says:

    Presumably senior doctors will provide emergency care. So does this constitute a withdrawal of emergency care?

  • Dominic Wilkinson says:

    If a group decide not to provide front-line services – that is going to count as withdrawing those services, whether or not someone else is able to take their place.
    For example, if police officers decided to strike, but the army were able to staff police stations and patrol the street – it would still count as withdrawal of service.

    The question of whether senior doctors will step in is clearly relevant to the chance of harm as a consequence of the strike.
    Senior doctors are actively working to cover any gaps, and that will hopefully prevent any immediate harm as a result of today’s strike.
    It might be that junior doctors are able to be covered in the short term – (an emergency strike then becomes a de facto elective strike, since consultant elective work is cancelled to cover emergencies). However, whether this is able to prevent all harm from the strike is an open question.
    Another possibility – would be whether consultants would be able to withhold emergency care if (and as seems likely when) the government decides to impose on us its new contract. On the argument above – they should not.

    The wider question is about where the threshold lies for both the nature and chance of harm resulting from a particular type of strike before it is prohibited.

  • Paul Treanor says:

    This article is inconsistent in terminology, switching between ‘doctors’ and ‘health professionals’. It therefore ignores the fundamental differences in the position of doctors, and those at the base of the pyramid in the notoriously hierarchical health care system. While we can assume that doctors in the UK choose their profession freely, that is certainly not true for low-grade care staff, who are often recruited from the unwilling unemployed, in the UK and other EU states. There is a more fundamental issue, of whether it is legitimate to force individuals to care for other individuals who depend on that care, and may die without it. Dr. Wilkinson does not address that issue. Remember that a strike is essentially a temporary state of affairs, and is intended to produce a rapid negotiated settlement of a dispute. It is a different matter if the health care system deliberately recruits staff from a vulnerable underclass, who have no escape route from such quasi-workfare placements. The issue then is whether the suffering of the patient, in the absence of care, outweighs the suffering of the vulnerable individual who is compelled to provide that care.

    The article also suffers from its focus on a single jurisdiction, in this case England. Now, as the author does point out, there are different laws in different countries. As with with some other ethical issues, there is no need to adopt a single uniform standard, which is in practice always a national standard. The UK apparently has de facto regional standards, although that is more of a historical accident. That seems to be the simple solution to the fake ‘ethical dilemma’ here: adopt multiple standards, and let the individual patient choose. That’s not the same thing as a market mechanism, because no competition is implied. There is no reason why one hospital should not ban doctors’ strikes, and another hospital permit them.

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